LCIL International Law Centre Podcast

Lecture summary: The International Criminal Court is engaged in investigations in a number of situations of ongoing conflict. Recent scholarship and practice has paid attention to the question of whether the threat of prosecution at the international level contributes to the pursuit of domestic trials. Implicit in much of this work is an assumption that contributing to the pursuit of such domestic trials is always a good thing. In this paper, I challenge this assumption. The central argument is that the Office of the Prosecutor at the ICC ought to, in at least some cases, try to use its coercive power and discretion in order to bring about other, non-retributive, ends. To make that argument, the paper proceeds in four parts. First, on a normative and political level, it argues that the classic tensions between trials and other, incommensurable goods at stake in peace negotiations is as strong as ever, despite conceptual and institutional developments. Second, it looks to literature on compellence theory in international relations, particularly relating to sanctions, and suggests that threats of prosecution and, further along the investigative chain, promises of non-prosecution might be able to contribute to these other, non-retributive, ends. Third, on an institutional level, it argues that although not without risks, the use by the OTP of its discretion in this way is not inconsistent with the Statute and the Court's institutional mandate. Fourth, practically, the paper considers what such an approach would look like in reality, its challenges - both political and bureaucratic - and the difficult issue of prosecutorial accountability. Overall, the aim is to propose an approach that integrates the ICC into an international order that is not, and should not be, concerned primarily with criminal accountability. Miles Jackson is an Associate Professor of Law at the University of Oxford and a Fellow of Jesus College. He holds MA and DPhil degrees from the University of Oxford, an LLM degree from Harvard Law School, and an LLB from the University of South Africa. His doctoral research, supported by a Rhodes Scholarship, was on complicity in international law and was published by Oxford University Press in 2015. He has published in a range of journals, including the European Journal of International Law, the Oxford Journal of Legal Studies, and the Journal of International Criminal Justice. In 2017, he was awarded the Cassese Prize for International Criminal Law Studies.

Lecture summary: This talk reflects upon the evolution of territorial sovereignty in international law. Professor Shaw will trace the classic origin and formulation of this key concept and discuss the major challenges to it, from internal threats such as self-determination and secession to external challenges such as the rise of international human rights, international criminal law and international environmental law. What may be concluded as to the balance between globalisation and territorialism today? Professor Malcolm Shaw QC is a Senior Fellow at the Lauterpacht Centre for International Law and Emeritus Sir Robert Jennings Professor of International Law, University of Leicester. Author of International Law, 8th ed, 2017 (translated into Chinese, Hungarian, Polish, Portuguese and Turkish); of the 5th edition of Rosenne’s Law and Practice of the International Court of Justice, 2016, and of Title to Territory in Africa, 1986, as well as of many articles in leading journals such as the British Year Book of International Law, the International and Comparative Law Quarterly and the European Journal of International Law. Lectures delivered include the Hersch Lauterpacht Memorial Lectures in Cambridge (2010); the inaugural General Course on International Law at the Xiamen Academy of International Law, China (2006) and the first Shabtai Rosenne Memorial Lecture in the Peace Palace, Hague (2011). Former Trustee of the British Institute of International and Comparative Law. Elected Associé of the Institut de Droit International in 2013. Practising barrister at Essex Court Chambers specializing in public international law.

Dr Christine Schwöbel-Patel is Associate Professor at Warwick Law School, University of Warwick. She previously held positions at the University of Liverpool, Leiden University and Kings' College London. Christine researches and teaches in international law. Her research focuses on questions of conflict and humanitarianism, mass atrocities and institutions of law, as well as pedagogy. These themes are brought together through a political economy and aesthetics critique. She is writing a monograph titled 'Marketing Global Justice' which analyses the political economy of global justice projects, to be published with Cambridge University Press in 2019.

Lecture summary: This essay refracts the ICC’s criminal conviction and reparations order in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display, and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art, and literature. What might the work product of the ICC in the Al Mahdi proceedings – and international criminal law more generally – add, contribute, or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that undergird transitional justice which, in turn, often insist upon cultural change, including to cultures of oppression and impunity. Along the way, this essay also unpacks thorny questions as to how to value cultural property; how to determine what, exactly, constitutes the kind of property whose destruction should be criminalized; and which ‘cultures’ should be protected by ‘whom’ and in ‘whose’ interests. Professor Mark A Drumbl is the Class of 1975 Alumni Professor at Washington & Lee University, School of Law, where he also serves as Director of the Transnational Law Institute. He lectures, practices, and publishes widely in the area of international criminal law, post-conflict justice, and public international law. His book, Atrocity, Punishment, and International Law (Cambridge University Press, 2007) has won commendations from the International Association of Criminal Law (U.S. national section) and the American Society of International Law. In 2012, he published Reimagining Child Soldiers in International Law and Policy (Oxford University Press), which has been effusively reviewed and critically acclaimed. He is co-editing the Research Handbook on Child Soldiers (with Dr Jastine Barrett). He has additionally taught at a number of law faculties, including Oxford, Paris, Melbourne, Monash, Ottawa, and the Free University of Amsterdam.

Round table discussion: 'International Law in an Era of Nationalism'. Speakers: Prof John Dugard SC - Doughty Street Chambers; Sir Christopher Greenwood GBE CMG QC; Prof Catherine Barnard - University of Cambridge; Dr Lorand Bartels - University of Cambridge; Dr Sarah Nouwen - LCIL Co-Director. https://www.lcil.cam.ac.uk/press/events/2018/11/lcil-event-international-law-era-nationalism-round-table-discussion

Contrasting how Malcolm X and Hannah Arendt approached the question of human rights, this lecture examines how violence is central and hierarchy is intrinsic to the political operations of humanity. It argues that talking about humanity requires a preparedness to examine the violent legacies of humanism, including its anti-colonial kinds. Dr Ayça Çubukçu is Associate Professor in Human Rights and Co-Director of LSE Human Rights at London School of Economics and Political Science. She is the author of For the Love of Humanity: The world Tribunal on Iraq.

Lecture summary: The problem confronting the users of international law, whether academic or professional, is very often not whether a rule of customary law has come into existence (as has recently been handled with such success by the ILC), but rather, granted that a rule of customary law on a given subject does exist, how to establish what its specific content is, for the purpose of then applying it to a particular situation. This applies not only to reasoned judicial decision but should also inform the processes of legal advice and decision-making based upon it. Ultimately what this may amount to is the assessment and weighing of the opinions of others. Rule of law considerations dictate that this can’t be a matter of subjective preference but must be based on known principles, i.e. to determine which opinions carry authority. The talk will investigate some of the issues involved, in the light, particularly, of Article 38 of the ICJ Statute. Sir Franklin (Frank) Berman joined HM Diplomatic Service in 1965 and was the Legal Adviser to the Foreign & Commonwealth Office from 1991-99. For the past 17 years he has been in practice in Essex Court Chambers specializing in international arbitration and advisory work in international law. He is Visiting Professor of International Law at Oxford and the University of Cape Town, and Chairman of the Board of Trustees of the British Institute of International & Comparative Law. His career in international law and diplomacy has spanned a wide and varied field, including settlement of disputes; the law of treaties; State responsibility; diplomatic and State immunity; maritime delimitation; the law of the Continental shelf; outer space and nuclear energy; the law of international organisations; the UN Security Council; the laws of war and neutrality; international criminal tribunals; and numerous other areas. He is a Member of the Permanent Court of Arbitration, a former Judge ad hoc of the International Court of Justice, and was the Legal Member of the Court of Arbitration between Pakistan and India under the Indus Waters Treaty. He has sat on numerous ICSID arbitral and annulment proceedings. He is the general editor of the Oxford International Law Library.

Lecture summary: At various points throughout this work, Grotius makes reference to a category that he variously calls 'morals' (moralia), 'moral things' (res morales) or 'the matter of morals' (materia moralis). This field of entities is always invoked in conjunction with certain principles of reasoning that shape the scope and application of more strictly legal principles and reasoning. This lecture looks at how 'moral' reasoning intersects with legal reasoning to produce Grotius's distinctive view of the international order. I argue that it is the appeal to 'morals' that allows him to craft a jurisprudence that accommodates the concrete realities of power within and between states while still differentiating itself from politics and reason of state. Dr Annabel Brett is a Reader in the History of Political Thought, University of Cambridge and Fellow of Gonville and Caius College, Cambridge.

Lecture summary: The role of civil society in drafting and the adoption of the Rome Statute for the International Criminal Court (ICC) is well known, as is the contribution of civil society to advocating for states to ratify the Statute and implement its provisions. However, despite the importance of these contributions, such opportunities do not constitute direct participation in the formal proceedings of the ICC. Other than the role of civil society actors as a witness, be it as an expert or a factual witness, there is only one option for direct participation of civil society in ICC proceedings: that is, to participate as an amicus curiae. States, too, have more limited rights of participation in proceedings before the ICC, particularly in comparison to other international institutions. However, the proceedings may raise issues of direct relevance to a state or broader relevance to several states, including states parties and non states-parties. Where the Rome Statute legal framework does not provide for formal rights of participation for states, states too must rely on the amicus curiae mechanism. This lecture addresses the practice in relation to the amicus curiae in proceedings before the ICC, particularly the reliance on this mechanism by both civil society actors and states. It sets out the legal framework for the amicus curiae in the ICC, analyses the types of actors that have sought to appear as amici curiae, and examines the process and criteria applied by ICC Chambers when considering applications, as well as the range of topics on which amici have sought to make submissions. It concludes that the ICC has so far been cautious in its approach to the amicus curiae; however, amici – particularly states – can influence outcomes at the ICC.

This talk will consider the changes which have taken place in recent years in attitudes towards questions of public international law and of foreign affairs when they arise in the context of domestic litigation. David Lloyd Jones, Lord Lloyd-Jones, became a Justice of The Supreme Court of the United Kingdom in October 2017. Lord Lloyd-Jones was born and brought up in Pontypridd, Glamorgan. He attended Pontypridd Boys' Grammar School and Downing College, Cambridge of which he was a Fellow from 1975 to 1991. At the Bar his practice included international law, EU law and public law. He was amicus curiae (independent advisor to the court) in the Pinochet litigation before the House of Lords. Lord Lloyd-Jones was appointed to the High Court in 2005. From 2008 to 2011 he served as a Presiding Judge on the Wales Circuit and Chair of the Lord Chancellor's Standing Committee on the Welsh Language. In 2012 he was appointed a Lord Justice of Appeal and from 2012 to 2015 he was Chairman of the Law Commission. Lord Lloyd-Jones is the first Justice of the Supreme Court to come from Wales.